AVERY BRICE, PETITIONER V. UNITED STATES OF AMERICA
No. 90-6124
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fourth Circuit
Brief For The United States In Opposition
OPINIONS BELOW
The opinions of the court of appeals on direct appeal from
petitioner's sentence (United States v. Brice, No. 87-5585 (4th Cir.
Dec. 28, 1987), on appeal from the district court's denial of
petitioner's motion under Fed. R. Crim. P. 35(b) (App., infra, A1-A6)
and on appeal from the district court's subsequent denial of his
motion to reduce sentence (Pet. App. A1-A5) are unreported.
JURISDICTION
The judgment of the court of appeals was entered on August 1, 1990.
The petition for a writ of certiorari was filed on October 30, 1990.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether the court of appeals erred in vacating petitioner's
convictions for certain offenses under the Federal Bank Robbery Act
without remanding for resentencing.
STATEMENT
Following a trial in the United States District Court for the
Western District of North Carolina, petitioner was convicted on two
counts of bank robbery, in violation of 18 U.S.C. 2113(a), and two
counts of bank larceny, in violation of 18 U.S.C. 2113(b).
Petitioner's convictions for bank robbery and bank larceny on Counts 1
and 2, respectively, were based on his January 8, 1987 robbery of the
First Citizens Bank and Trust Company in Charlotte, North Carolina;
his convictions for bank robbery (Count 3) and bank larceny (Count 4)
were based on his January 15, 1987 bank robbery of the NCNB National
Bank of North Carolina in Charlotte, North Carolina.
The district court sentenced petitioner to a 12-year term of
imprisonment on Counts 1 and 2 and an 8-year consecutive term of
imprisonment on Counts 3 and 4. It also ordered a separate special
assessment on each count totalling $200. Petitioner's convictions
were affirmed on direct appeal. United States v. Brice, No. 87-5585
(4th Cir. December 28, 1987). Pet. App. A3.
The district court denied petitioner's subsequent motion to correct
his sentence under Fed. R. Crim. P. 35(a). On appeal from that
ruling, the court of appeals held that the simultaneous convictions
for bank robbery and bank larceny were error because bank larceny is a
lesser-included offense of bank robbery. App., infra, A3-A4. With
regard to petitioner's sentence, the court observed that "(t)he
imposition of the special assessment on (petitioner's) two Section
2113(b) convictions was improper" because petitioner could not receive
a separate punishment for each count of larceny and robbery. Id. at
A4. The court remanded with instructions to vacate the assessments on
Counts 2 and 4. Id. at A6.
However, the court found "no merit to petitioner's claim that his
terms of incarceration were illegal," App., infra, A6. As the court
explained, the district court "correctly specified that the
convictions for the lesser offenses described in counts 2 and 4
'merged' with their respective greater offenses." Therefore, for
purposes of the sentence of incarceration, counts 2 and 4 "ceased to
be of legal consequence." Id. at A5. Although the court of appeals
found it to be "apparent that the district court * * * intended that
the sentences imposed on (petitioner) be for the two greater offenses
described in counts 1 and 3 for violations of Section 2113(a)," ibid.,
it remanded to the district court with instructions to "modify the
judgment of conviction to indicate that the 12-year sentence was for
count 1 and the 8-year sentence for count three." Id. at A6.
On remand, the district court amended its judgment to make clear
that petitioner was sentenced to a 12-year term on Count 1 and an
8-year term on Count 3, to be served consecutively to the sentence on
Count 1. The court did not impose assessments on the merged larceny
counts, effectively abating the two $50 assessments on the larceny
convictions. Pet. App. A4.
The court of appeals affirmed in part and reversed in part. Pet.
App. A1-A5. Pursuant to the government's concession, the court
vacated petitioner's larceny convictions. Noting that "(t)he 12-year
sentence for the first robbery and the 8-year sentence for the second
robbery were proper when they were imposed," Pet. App. A4, the court
rejected petitioner's arguments that he was entitled to a reduction in
sentence and to resentencing at a hearing at which he would be
present. Id. at A4-A5. /1/
ARGUMENT
Petitioner contends (Pet. 3-7) that the court of appeals erred in
vacating his two bank larceny convictions without requiring
resentencing. The court of appeals correctly decided this case, and
its decision does not conflict with any decision of this Court or of
the courts of appeals. Further review is unwarranted.
Petitioner originally received one 12-year sentence of imprisonment
for the convictions on the first two counts (robbery and larceny) and
one 8-year sentence for the remaining two counts (same). On appeal
from the district court's denial of petitioner's subsequent motion,
the court of appeals recognized that petitioner could not
simultaneously be convicted and sentenced for counts of bank robbery
and bank larceny relating to the same robbery. The court also
recognized, however, that, although the special assessments and
convictions on each count were improper, petitioner had not received
separate terms of imprisonment for the larceny counts, and his
sentences of imprisonment were therefore legal. Although the court
did not, at that point, explicitly direct the district court to vacate
the redundant convictions, it instructed the district court to clarify
that each sentence was based only on the conviction for bank robbery.
The district court complied with these instructions. Following
another appeal and remand, the district court finally vacated the
larceny convictions, but left the sentences of imprisonment
undisturbed.
In light of this sequence of events, petitioner's contention that
he is entitled to resentencing is without merit. Petitioner received
one sentence, not separate sentences, for the larceny and robbery
counts arising out of each bank robbery. These counts were merged by
the district court for purposes of sentencing. See App, infra, A2.
Those sentences were legal when imposed.
When one crime is a lesser included offense of another, they may
not both form the basis of separate convictions or separate and
cumulative sentences, even if those sentences are concurrent. See
Prince v. United States, 352 U.S. 322 (1957) (sentences); Ball v.
United States, 470 U.S. 856 (1985) (convictions). Although petitioner
was convicted separately for bank larceny and bank robbery in
violation of the principle articulated in Ball, he was not sentenced
to separate terms of imprisonment on each count in violation of the
proscription in Prince. Therefore, there was nothing unlawful about
petitioner's prison sentences at the time they were imposed, and no
need to modify them subsequently.
Petitioner nevertheless contends that he must be resentenced
because each sentence he received was originally based on a conviction
for larceny as well as robbery, and may have been improperly
influenced by the unlawful larceny conviction. See Pet. 7. The
procedural history of this case belies that contention. The district
court originally merged each larceny count into the corresponding
robbery count for the purpose of sentencing. Recognizing that
convictions on both counts were improper, the court of appeals
remanded to the district court, inter alia, to clarify that each
sentence was based on only one count. The district court's amended
judgment on remand makes clear that each sentence was based on one
conviction only -- for robbery -- and was not influenced by the lesser
included larceny conviction. /2/ To be sure, the larceny convictions
should have been vacated instead of merged (see Ball v. United States,
470 U.S. 856 (1985)), but, as the court of appeals correctly realized,
that mistake in the court's procedure did not affect the sentences on
the robbery counts. See App., infra, A5 (for purposes of the
sentences of imprisonment, "the convictions for the lesser offenses *
* * ceased to be of legal consequence."). Therefore it was
unnecessary to remand to the district court for reconsideration of the
sentence. See Green v. United States, 365 U.S. 301, 305-306 (1961)
(plurality opinion) (remission of sentence not required where sentence
was legal despite formal defect in court's sentencing procedure).
The decisions of other courts of appeals that petitioner claims run
contrary to the ruling below are fully consistent with it and are, in
any event, factually distinguishable. In contrast with this case, the
defendants in both Prince v. United States, supra, and United States
v. Corson, 449 F.2d 544 (3d Cir. 1971), overruled on other grounds,
United States v. Busic, 639 F.2d 940 (3d Cir.), cert. denied, 452 U.S.
918 (1981), (see Pet. 4-5) were sentenced to a separate and
consecutive term of imprisonment for each count of unlawful entry and
robbery under different subsections of 18 U.S.C. 2113. In each case,
therefore, the sentence received by the defendant was unlawful at its
inception, and a remand for resentencing was required. In United
States v. Jasper, 481 F.2d 976 (3d Cir. 1973), the sentences for
violations of 18 U.S.C. 2113(a), (b), and (d) were concurrent rather
than consecutive. Nevertheless, the defendant was sentenced
separately on each count, in violation of the principles set forth in
Prince. Likewise, in Bryant v. United States, 417 F.2d 555 (D.C. Cir.
1969), cert. denied, 402 U.S. 932 (1971), in addition to receiving an
aggregate sentence for convictions on four robbery counts, the
defendant was also sentenced to a separate, concurrent term of
imprisonment for the lesser included offense of unlawful entry to
commit robbery. In this case, by contrast, petitioner received a
single sentence for each robbery count and each robbery count alone.
/3/ Those sentences were legal. Accordingly, resentencing was not
required merely because the lesser included larceny convictions were
subsequently vacated.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
THOMAS E. BOOTH
Attorney
JANUARY 1991
/1/ The court of appeals also held that petitioner's motion to
recuse the district court judge was properly denied. Pet. App. A5.
Petition does not challenge that ruling before this Court.
/2/ Petitioner does not challenge the district court's imposition
of consecutive sentences for the two separate and distinct robberies.
/3/ Petitioner's reliance on United States v. Edick, 603 F.2d 772
(9th Cir. 1979) is misplaced. There the court held that, where the
district court improperly imposed distinct and consecutive sentences
for offenses for which the defendant could not simultaneously be
convicted, resentencing was barred if the defendant had served one of
the sentences. In contrast, petitioner here has not finished serving
either of his sentences; in any event, the district court's order
makes clear that he did not receive discrete sentences for a greater
and lesser included offense.
The court of appeals below relied on the Fifth Circuit's decision
in United States v. Shubbie, 778 F.2d 199, 200 (5th Cir. 1985), but
that case is also readily distinguishable from the instant case. The
defendant in Shubbie was sentenced to serve two concurrent five-years
terms based respectively on convictions for making a false statement
and receiving a firearm. He also received a two-year term, to run
consecutively to the concurrent five year terms, for possession of a
firearm by a felon. The court of appeals held that, in the wake of
its ruling that the defendant could not simultaneously be convicted
for the latter two offenses, it was proper for the district court to
vacate the conviction and 5-year sentence for receiving a firearm
without resentencing on the other counts, since the district court's
action "had no effect on (the defendant's) prison term." 778 F.2d at
199.
In Shubbie, as in the other cases cited by petitioner, the
defendant received separate sentences for offenses for which he could
not simultaneously be convicted. That is not this case. Thus, even
if there is some tension between the holdings in Shubbie, and in
Jaspers and Bryant, this case does not present the occasion for its
resolution.